EXHIBIT 10.5
GUARANTY OF OBLIGATION
This Guaranty is made by Willbros Group, Inc., a Panama corporation,
("Guarantor"), in favor of TENASKA GEORGIA PARTNERS, L.P., a Delaware limited
partnership ("Tenaska"), with respect to that certain Engineering, Procurement
and Construction Agreement dated the 23rd day of September, 1999, between
Tenaska and WILLBROS ENGINEERS, INC., a Delaware corporation ("Contractor"), for
the construction of a natural gas transmission pipeline from the
Transcontinental Gas Pipeline Corporation meter station to the Tenaska Georgia
Generation Station, as amended, supplemented or otherwise modified from time to
time (hereinafter called the "EPC Agreement"), in consideration of the execution
of the EPC Agreement by Tenaska with Contractor.
Guarantor states and represents that Guarantor will derive direct and indirect
benefit from the making of the Guaranty.
NOW, THEREFORE, for good and valuable consideration, Guarantor hereby covenants
and agrees as follows:
1. Guarantor hereby unconditionally guarantees the full and timely
performance by Contractor of all of its obligations under the EPC
Agreement, as it from time to time may be amended, and hereby
undertakes that if Contractor shall in any respect fail to perform and
observe all of the terms, provisions, conditions, and stipulations of
the EPC Agreement, Guarantor warrants the faithful performance of all
of such terms and conditions and will fully indemnify and keep
indemnified Tenaska against all claims, losses, damages, costs and
expenses whatsoever which Tenaska may incur by reason of Contractor's
failure to perform and observe any of the terms, provisions,
conditions, and stipulations of the EPC Agreement (collectively, the
"Guaranteed Obligations"). THE OBLIGATIONS OF GUARANTOR HEREUNDER SHALL
NOT BE REDUCED, LIMITED OR TERMINATED, NOR SHALL GUARANTOR BE
DISCHARGED FROM ANY THEREOF, FOR ANY REASON WHATSOEVER (other than the
payment, observance and performance of the Guaranteed Obligations and
other than as provided in Section 9 of this Guaranty), including (and
whether or not the same shall have occurred or failed to occur once or
more than once and whether or not Guarantor shall have received notice
thereof):
(a) (i) any increase in, (ii) any extension of the time of
payment, observance or performance of, (iii) any other
amendment or modification of any of the other terms and
provisions of, (iv) any release, composition or settlement
(whether by way of acceptance of a plan of reorganization or
otherwise) of, (v) any subordination (whether present or
future or contractual or otherwise) of, or (vi) any discharge,
disallowance, invalidity, illegality, voidness or other
unenforceability of, the Guaranteed Obligations;
(b) (i) any failure to obtain, (ii) any release, composition or
settlement of, (iii) any amendment or modification of any of
the terms and provisions of, (iv) any subordination of, or (v)
any discharge, disallowance, invalidity, illegality, voidness
or other enforceability of, any other guaranties of the
Guaranteed Obligations;
(c) any termination of or change in any relationship between
Guarantor and Contractor, including any such termination or
change resulting from a change in the ownership of Guarantor
or from the cessation of any commercial relationship between
Guarantor and Contractor;
(d) any exercise of, or any election not or failure to exercise,
delay in the exercise of, waiver of, or forbearance or other
indulgence with respect to, any right, remedy or power
available to Tenaska, including (i) any election not or
failure to exercise any right of set-off, recoupment or
counterclaim, and (ii) any election of remedies effected by
Tenaska, and
(e) ANY OTHER ACT OR FAILURE TO ACT OR ANY OTHER EVENT OR
CIRCUMSTANCE THAT (i) VARIES THE RISK OF GUARANTOR HEREUNDER
OR (ii) BUT FOR THE PROVISIONS HEREOF, WOULD, AS A MATTER OF
STATUTE OR RULE OF LAW OR EQUITY, OPERATE TO REDUCE, LIMIT OR
TERMINATE THE OBLIGATIONS OF THE GUARANTOR HEREUNDER OR
DISCHARGE GUARANTOR FROM ANY THEREOF.
2. Guarantor represents and warrants to Tenaska and Tenaska's successors
and assigns that:
(a) Guarantor is duly organized and validly existing as a Panama
corporation;
(b) Guarantor is authorized and has all necessary power and
authority, corporate and other, to execute and deliver this
Guaranty and to perform the obligations of Guarantor,
including all obligations of Contractor pursuant to the EPC
Agreement;
(c) This Guaranty reasonably may be expected to benefit directly
or indirectly, Guarantor;
(d) This Guaranty has been duly executed and delivered by
Guarantor and is the valid, binding, and enforceable contract
of Guarantor;
(e) The execution and delivery of this Guaranty by Guarantor and
its performance of its obligations under the Guaranty, do not
(and, to the best of Guarantor's knowledge, will not) conflict
with any law, rule or regulation, or any agreement,
instrument, indenture, deed or any other restriction, to which
such Guarantor is subject or a party, or accelerate or affect
any of its obligations under any thereof.
3. Guarantor shall cause Contractor to duly and timely perform all of the
Guaranteed Obligations including the obligations of Contractor under
the EPC Agreement, as it may from time to time be amended.
4. The obligations of Guarantor hereunder include, without limitation, all
liabilities for liquidated or similar damages and warranty obligations
of Contractor.
5. Tenaska may enforce against Guarantor any and all of the rights of
Tenaska under this Guaranty without having instituted or completed any
legal, arbitration or other proceedings against Contractor or any
partner or joint venturer in Contractor.
6. This Guaranty shall be governed by and construed according to the laws
of the State of Texas. Guarantor submits to personal jurisdiction in
the State of Texas and further agrees that the non-exclusive venue for
any such action may be in the state and federal courts located in
Dallas County, Texas.
7. Guarantor waives: (a) any requirement, and any right to require, that
any right or power be exercised or any action be taken against the
Contractor, any partner or joint venturer in Contractor, or any other
guarantor or any collateral for the Guaranteed Obligations; (b) (i)
notice of acceptance of and intention to rely on this Agreement, and
(ii) all other notices that may be required by applicable law or
otherwise to preserve any rights against Guarantor under this
Agreement, including any notice of default, demand, dishonor,
presentment and protest; and, (c) diligence.
8. Guarantor shall not assert any right to set off against claims by
Tenaska hereunder other than claims which Contractor has a right to set
off under the EPC Agreement.
9. Notwithstanding any other provision to the contrary set forth herein,
Guarantor retains the right to assert any and all claims, defenses and
limitations of liability possessed by Contractor under the terms of the
EPC Agreement, (but excluding any defense based upon absence of binding
effect of the EPC Agreement).
10. Guarantor's obligations hereunder (a) are absolute and unconditional,
(b) subject to Section 9 above, are unlimited in amount, except as
provided in the EPC Agreement, (c) constitute a guaranty of payment and
performance and not a guaranty of collection, (d) are as primary
obligor and not as a surety only, (e) shall be a continuing guaranty of
all present and future Guaranteed Obligations, and (f) shall be
irrevocable.
11. This Guaranty may be assigned by Tenaska to Tenaska's lenders for the
project and shall inure to the benefit of such assignee(s).
12. Notice to Guarantor shall be to:
Willbros Group, Inc.
%Willbros USA, Inc.
000 Xxxxxxxx Xxxxx
0000 Xxxx 00xx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxx
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be
executed and delivered to Tenaska in the name and on behalf of Guarantor by one
of its officers who is duly authorized to do so, for the benefit of Tenaska, as
of this 23rd day of Septmber, 1999.
Guarantor
WILLBROS GROUP, INC.
ATTEST:
By: /s/ By: /s/
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(Name)
Title: Assistant Secretary Executive Vice President
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(Title)
CERTIFICATE OF SECRETARY
WILLBROS GROUP, INC.
I, Xxxx X. Xxxx, being the duly elected and acting Corporate Secretary
of WILLBROS GROUP. INC., a corporation organized and existing under and by
virtue of the laws of the Republic of Panama (hereinafter referred to as the
"Corporation"), do hereby
C E R T I F Y :
1. THAT the following preambles and resolutions are a true, correct and
complete copy of the same duly adopted by Memorandum of Action signed by all of
the members of the Executive Committee of the Board of Directors of the
Corporation on September 23, 1999, and that such resolutions have not been
rescinded since their adoption and are in full force and effect on the date
hereof:
EXECUTION OF GUARANTEE
WHEREAS, Willbros Engineers, Inc., a Delaware corporation ("WEI"),
is an indirect wholly-owned subsidiary of the Corporation; and
WHEREAS, WEI has entered into an Engineering, Procurement and
Construction Agreement dated September 23, 1999, with Tenaska Georgia
Partners, L.P., a Delaware limited partnership ("Tenaska"), with
respect to the construction of a natural gas transmission pipeline from
the Transcontinental Gas Pipeline Corporation meter station to the
Tenaska Georgia Generation Station (the "EPC Agreement"); and
WHEREAS, WEI has certain obligations to Tenaska under the EPC
Agreement; and
WHEREAS, Tenaska has requested the provision of a parent company
guarantee by the Corporation with respect of the obligations of WEI
under the EPC Agreement, such guarantee to be substantially in the same
form attached hereto (the "Guarantee"); and
WHEREAS, the provision of the Guarantee is deemed to be in the
best interests of the Corporation;
NOW, THEREFORE, BE IT
RESOLVED, that the form of, and the terms and conditions contained
in, the Guarantee be, and the same hereby are, authorized and approved
in all respects; and further
RESOLVED, that the execution, delivery and performance by the
Corporation of the Guarantee be, and the same hereby are, authorized
and approved in all respects; and further
RESOLVED, that the Chairman, the President and each of the Vice
Presidents of the Corporation be, and each of them individually hereby
is, authorized and empowered to negotiate and make such changes,
modifications, additions and deletions to the Guarantee as they, or any
of them, in their sole discretion, may deem appropriate, and to execute
and deliver, for and on behalf of the Corporation, the Guarantee, in
such form as the officer or officers executing the same shall deem
necessary, advisable or appropriate, as shall be conclusively evidenced
by his signature affixed thereon; and further
RESOLVED, that the officers of the Corporation be, and each of
them individually hereby is, authorized and empowered, for and on
behalf of the Corporation, to execute and deliver any and all
additional documents, instruments and papers, and to take or cause to
be taken such additional actions, as they or any of them, in their sole
discretion, may deem necessary, convenient or appropriate in connection
with the negotiation, execution and deliver of the Guarantee and to
carry out the purposes of the foregoing resolutions, and in this
connection to take such action and to execute, deliver, acknowledge,
record, file and certify all such further instruments, certificates,
letters, agreements, documents, papers and undertakings as the officer
or officers so acting may consider and determine necessary, advisable
or convenient, as shall be conclusively evidenced by his signature
affixed thereon.
2. THAT the persons identified below are duly elected, qualified and
acting Officers of the Corporation; and that they hold the office or offices set
forth opposite their names on the date hereof:
NAME TITLE
Xxxxx X. Bump Chairman of the Board and Chief
Executive Officer
Xxxx X. Xxxxx President and Chief Operating Officer
2
NAME TITLE
Xxxxxx X. Xxxxxxxxx Executive Vice President, Treasurer
And Chief Financial Officer
Xxxxxxxx X. Xxxxxx, Xx. Senior Vice President
Xxxx X. Xxxx Corporate Secretary
X.X. Xxxxxx Assistant Secretary
Xxxxx X. Xxxxxxxxx Assistant Secretary
Xxxxxx X. Xxxxxx Assistant Treasurer
Xxxxx X. Xxxxxxx Assistant Treasurer
3. AND I FURTHER CERTIFY THAT I am authorized to execute this Certificate
on behalf of the Corporation.
IN WITNESS WHEREOF, I have hereunto executed this Certificate and
affixed the seal of the Corporation, this 27th day of September, 1999
By: /s/ Xxxx X. Xxxx
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Xxxx X. Xxxx
Corporate Secretary
I Xxxx X. Xxxxx, President of the Corporation, do hereby certify that
Xxxx X. Xxxx is the duly elected, qualified and acting Corporate Secretary of
the Corporation, and that the signature set forth above his name is his true and
genuine signature.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 27th
day of September, 1999.
/s/ Xxxx X. Xxxxx
-----------------------------------
Xxxx X. Xxxxx
President
3
County of Tulsa )
State of Oklahoma ) Section
United States of America )
Before me, the undersigned, a Notary Public in and for the aforementioned
County, State and Country, on this 27th day of September, 1999, personally
appeared Xxxx X. Xxxxx and Xxxx X. Xxxx, President and Corporate Secretary,
respectively, of WILLBROS GROUP, INC., to me known to be the identical persons
who executed the foregoing instrument, and acknowledged that they executed the
same as their free and voluntary act and deed, and as the free and voluntary act
and deed of said Corporation.
In Witness Whereof, I have hereunto set my official signature and affixed
my notarial seal the day and year last above written.
/s/ Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx
Notary Public
My Commission Expires:
February 27, 2001
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